| People v Boampong |
| 2008 NY Slip Op 10014 [57 AD3d 794] |
| December 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v IssacBoampong, Respondent. |
—[*1] Gruvman, Giordano & Glaws, LLP, New York, N.Y. (Charles T. Glaws of counsel), forrespondent.
Appeals by the People, as limited by their brief, (1) from so much of an order of the SupremeCourt, Kings County (Walsh, J.), dated February 20, 2007, as, in effect, granted those branches of thedefendant's motion which were to dismiss counts one, two, and three of the indictment charging rape inthe third degree, incest, and sexual misconduct, respectively, on the ground that the evidence presentedto the grand jury was legally insufficient to establish that the defendant committed any sexual act withthe complainant on December 30, 2005, and (2) from so much of an order of the same court datedMarch 15, 2007, as, in effect, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated February 20, 2007 is dismissed, as that order wassuperseded by the order dated March 15, 2007, made upon reargument, and it is further,
Ordered that the order dated March 15, 2007 is reversed insofar as appealed from, on the law, somuch of the order dated February 20, 2007, as, in effect, granted those branches of the defendant'smotion which were to dismiss counts one, two, and three of the indictment charging rape in the thirddegree, incest, and sexual misconduct, respectively, is vacated, and upon reargument, those branchesof the defendant's motion are denied.
A court reviewing the legal sufficiency of grand jury evidence must view the evidence in the [*2]light most favorable to the People and determine whether that evidence, ifunexplained and uncontradicted, would be sufficient to support a verdict of guilt after a trial (seePeople v Jensen, 86 NY2d 248, 251 [1995]; People v Jennings, 69 NY2d 103, 114[1986]). The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences thatlogically flow from those facts supply proof of each element of the charged crimes and whether thegrand jury could rationally have drawn the inference of guilt (see People v Bello, 92 NY2d523, 526 [1998]). The existence of inferences of innocence arising from the evidence has no bearingupon the legal sufficiency inquiry (see People v Deegan, 69 NY2d 976 [1987]). Viewing theevidence in the light most favorable to the People, we find that the evidence presented to the grand jurywas legally sufficient to support count one of the indictment charging the defendant with rape in the thirddegree (Penal Law § 130.25 [1]), count two of the indictment charging the defendant with incest(Penal Law § 255.25), and count three of the indictment charging the defendant with sexualmisconduct (Penal Law § 130.20 [1]). Specifically, the testimony of the complainant, coupledwith the testimony of the detective, was legally sufficient to establish the element of sexual intercourserequired for each of the stated counts. Fisher, J.P., Angiolillo, Dickerson and Belen, JJ., concur.